B-401182, Northern Light Productions, June 1, 2009

Decision

Matter of: Northern Light Productions

File: B-401182

Date:June 1, 2009

William
H. Butterfield, Esq., for the protester.
Sheryl L. Rakestraw, Esq., Department of the Interior, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that an agency’s inclusion
of data rights requirements in the solicitation’s evaluation scheme precluded
an agency determination that the protester’s proposal was unacceptable on the
basis that it took exception to those requirements is denied where the data
rights requirements are a material term of a solicitation and the record shows
that the protester’s proposal took exception to those requirements.

DECISION

Northern Light Productions (NLP),
of Allston, MA, protests the failure of the Department of the Interior (DOI),
National Park Service (NPS) to select its proposal for award under request for
proposals (RFP) No. N1143080021, for audiovisual production and services. NLP asserts that, because the agency included
the data rights requirements in the RFP’s evaluation scheme, NPS could not
properly determine that the protester’s proposal was unacceptable on the basis
that it took exception to those requirements.

We deny the protest.

The RFP, which contemplated award of up to 10 fixed-price,
indefinite-delivery/indefinite-quantity contracts, contained the Federal
Acquisition Regulation (FAR) Rights in Data-Special Works clause, which states
in part that the “Government shall have unlimited rights in all data delivered
under this contract.” FAR sect.
52.227-17(b)(1). The evaluation factors,
in order of importance, were past performance (worth 40 out of 100 total
available points); samples of work (30 points); personnel (20 points); and
comprehensive plan (10 points). The
description of the comprehensive plan evaluation factor states in full:

Evaluation will be based on the knowledge of
audiovisual programs and processes, quality assurance, timeliness and
effectiveness of finished products, how projects involving subcontractors are
managed and your firm’s capability to manage projects under this contract. Evaluation will also include your
understanding of the Rights in Data clause and other licensing requirements.

RFP at M-3 (emphasis added).

The RFP also included the
following provision: “Ownership of
Products: All original media produced
under this contract is the property of the National Park Service. The National Park Service’s use of the
materials provided shall not be restricted in any manner.” RFP at C-4.

The protester’s initial proposal
made no mention of the Rights in Data clause; its final revised proposal
contained the following language: “All
materials will be cleared for educational and museum presentation use for the
life of the programs, up to twenty years.”[1] Agency Report (AR), Tab 11, Protester’s Final
Proposal Revisions at 17. The
protester’s proposal received 95.64 points, including seven out of ten points under
the comprehensive plan factor. Nonetheless,
the contracting officer (CO) found the proposal unacceptable, however, because it
took exception to the Rights in Data clause and the clause regarding ownership
of products, quoted above, by restricting the nature and the duration of the
agency’s use of the materials to be produced under the contract.

The protester argues that an
offeror’s understanding of the Rights in Data clause was but one portion of the
comprehensive plan factor, which was worth a maximum of ten points, and that the
failure of the protester’s proposal to comply with that clause was properly
considered in the comprehensive plan factor scoring. Having considered this aspect of the proposal
under the criterion announced in the RFP, the CO’s subsequent determination
that the protester’s proposal was unacceptable was inconsistent with the RFP,
the protester asserts, given the overall high score that the proposal received. We disagree.

In negotiated procurements, a
proposal that fails to comply with the material terms[2]
of the solicitation should be considered unacceptable and may not form the
basis of award. Nordic Air, Inc.,
B-400540, Nov. 26, 2008, 2008 CPD para. 223 at 3. We will not disturb an agency’s determination
of the acceptability of a proposal absent a showing that the determination was
unreasonable, inconsistent with the terms of the solicitation, or in violation
of procurement statutes or regulation. Id. Further, when a dispute exists as to the
exact meaning of a solicitation requirement, our Office will resolve the matter
by reading the solicitation as a whole and in a manner that gives effect to all
provisions of the solicitation. Id. Here, it is unclear what purpose was served
by the agency’s inclusion of an offeror’s understanding of the Rights in Data
clause as one aspect of the comprehensive plan evaluation factor. But the protester’s interpretation--that the
agency was restricted to the comprehensive plan evaluation factor when
considering a proposal’s understanding of that clause--negates both the text of
the clause, which is included in full in the solicitation, as well as the Ownership
of Products provision in the RFP, quoted above, requiring offerors to grant to
the agency unrestricted use of the materials produced under the contract. When read as a whole, then, the only reasonable
interpretation of the RFP is that it requires proposals to offer the agency
unrestricted data rights. Because the
protester’s proposal failed to do so, we see no reason to question the agency’s
decision to exclude it from the competition as unacceptable.

The protester argues that,
because its proposal contained no explicit deviations or exceptions, under the
RFP’s standard “deviations and exceptions” clause,[3]
the agency could not reasonably conclude that the proposal offered the agency
less than unrestricted rights in the materials produced under the contract. The protester’s proposal restricted the
agency’s manner and duration of use of the materials created under the contract. To say that such a statement may not be
deemed a deviation from the terms of the RFP because it was not in a proposal
section labeled “deviations and exceptions” is an unpersuasive attempt to
elevate form over substance. The plain
language of the protester’s proposal clearly took exception to a material term
of the RFP.

Even if its proposal had taken
such an exception to the RFP, the protester argues, “this would not have
afforded the government the right to find the offer ‘unacceptable’, under the
explicit terms of the very contract clause that the NPS itself drafted.” Comments on AR at 2. We disagree.
The deviations and exceptions clause merely states that deviations from
the terms of the RFP will not automatically render a proposal unacceptable, and
the record in this case does not support an allegation that the protester’s
proposal was “automatically” deemed unacceptable. Rather, the CO determined that the
protester’s final proposal revisions failed to comport with a material term of
the solicitation, and she therefore determined that the proposal was
unacceptable.

The protest is denied.

Daniel I. Gordon
Acting General Counsel

[1]
The protester asserts that the only issue with this statement is the
“inadvertent inclusion” of the final four words. Comments on Agency Report at 6. However, as the agency notes, not only does
the protester’s proposal restrict the length of time that the agency has rights
to the material, but also the uses to which the materials may be put.

[3] The
RFP contained a standard “deviations and exceptions” clause which instructed
offerors that exceptions would not, of themselves, automatically cause a
proposal to be termed unacceptable, though a large number of exceptions might
result in a proposal being rejected as unacceptable. RFP at L-7.